How the Legal System Perpetuates Injustice

Jon Hanson is the Alfred Smart Professor of Law at Harvard Law School. He is the Director and co-creator of The Project on Law and Mind Sciences at Harvard Law School and co-creator of, and contributor to, The Situationist blog, which is a forum for identifying, examining, discussing, and debating, the effect of situational forces — that is, non-salient factors around and within us — on law, policy, politics, and legal theory, and on our social, political, and economic institutions.

10 March, 2010

Question: How have policy makers responded to your research?

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Jon Hanson: Psychology is sort of finding its way into law and legal theory in little bits and pieces and the first way in which it has done so is psychologists have come to law and said gee let’s look at a few settings, let’s look at how juries behave and they apply psychological insights and they can tell us something very interesting about what kinds of jurors will find particular kinds of stories compelling or not for example. Or they might look at say police lineups, how well can people really identify someone that they saw in the midst of a crime. The social psychologists and others have said not very well despite the fact that we think they can. So this is really interesting application of Mind Sciences to an area of law but it’s a very particular area of law. And it’s not surprising that that’s where the Mind Sciences would have their kind of easiest tractions, their firmest initial grip.

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Similarly, the Mind Sciences have had a role in tweaking the Rational Actor Model. If what you can do with some psychological experiments is say that the Rational Actor Model as we know it is wrong in a very predictable, small minor way, than that is both interesting because it’s a new insight and it it tractable. It allows those who bring those insights to law and legal theory a way of arguing that you needn’t throw out your Rational Actor Model to take into account these insights. Law and behavioralism is an example of that more bounded approach and they call this Bounded Rationality.

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In a way, what they’re trying to do is hold onto the Rational Actor Model, the Dispositionalist Actor Model and to tweak it by showing that there some systematic bias in this direction or that direction. Its great work and it’s important and it’s definitely a step down the road of taking into account these insights. That sort of research has had some impact I think on the Obama Administration. It’s had an impact both in how he frames issues and how he proposed solutions. Just as important, it’s had an impact on the personnel and the people he’s been surrounded with so, terrific work by my colleague Cass Sunstein; for example, of just this type is part of the reason why I think Cass Sunstein is now in a governmental position where he is trying to decide what are the right ways to regulate. And as a now a regulator of sorts he’s trying to find particular applications of this kind of economic behavioralist’s insight.

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My view is that the insights of Mind Sciences run much deeper than that. They go places that are much less comfortable and part of what the Mind Scientists have discovered for example is that we humans have a very strong and by the way, I’m being a little broad, I would say at least we Americans at this moment in our history have a very strong craving to believe that our system is just. And that desire to believe that particularly when the system is threatened is going to influence how we interpret our world. Now it’s going to influence what theories and what schemas we find attractive and that we find credible. It’s going to influence what kinds of questions we’re willing to ask and what kinds of answers we’re willing to give. The problem is that an understanding of that and there’s a burgeoning area of work among the more prominent contributors or people like John Jost at NYU who writes about System Justification Theory and Tom Tyler also at NYU who writes about sort of sources of legitimacy.

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The problem is that our desire to believe that the system is just and our willing to see, our willingness to see the system as legitimate even when in terms of outcomes, it arguable isn’t means that we can use our laws and our legal theories as part of the palliative to make ourselves feel okay about our world and the way things are. And in you know in a society and in a country that values equality and freedom and liberty and opportunity and thinks that these things ought to apply across many groups; our ability to stomach or countenance vast inequalities, vast ranges of freedom and liberty is in part I think a reflection of our legal system that helps to justify those inequalities and that in turn is in part a reflection of our dispositionist starting point which says that people are where they are because they chose it and it refuses to look at the situational forces behind it. So this in my view is the unhappy news that the Mind Sciences have. I for one things it’s really important to pursue that and to consider its implications but so far, I have not felt that there is the Obama Administration for example has gone anywhere with those particular kinds of insights.

Recorded on February 17, 2010Interviewed by Austin \r\nAllen

One of the most depressing ironies of America’s legal system is that, in a country that values "freedom" and ""equality," it clings to a rigid model of human behavior that is blind to the situational forces at play in the choices people make.